Bonum Certa Men Certa

Software Patents Are a Dying Breed in the United States and the EPO Should Take Notice

Software patents are rotting away internationally, but will the EPO adapt accordingly?

Fading away



Summary: A roundup of recent news about software patents in the United States and what this means to Europe, where the patent office is now in a state of transition and must quickly restore quality rather than quantity

TECHRIGHTS spent nearly a decade writing about software patents and my activism against software patents predates this Web site. It's only now, or any time after the 2014 decision on Alice, that considerable headway can be celebrated. The Bilski case (at SCOTUS) just wasn't enough.



Patently-O has this up-to-date list of "Pending Supreme Court Patent Cases 2016" and its author recalls SCOTUS Justice Scalia. "Following Justice Scalia’s death," he notes, "the Supreme Court simplified its docket by denying certiorari to a set of patent cases, including: Arthrex v. Smith and Nephew; STC v. Global Traffic Technologies; ePlus v. Lawson Software, Inc.; Media Rights Technologies v. Capitol One; Alexsam v. The Gap; ULT v. Lighting Ballast Control; and Achates v. Apple."

"All in all, software patents everywhere have no room in the docket, as courts (even in Europe) deem them invalid and it is time to recognise this new reality."Patent Docs, another patents-centric site, says that the "USPTO Issues Performance and Accountability Report for FY 2015", not quite noting that the USPTO only cares about money, not quality (very much the Battistelli delusion/lunacy).

Patent lawyers, based on this new article from lawyers' media, still try to figure out how to continue fighting the courts over software patents after Alice. It's not easy for them to accept deflation in the number of patents. They think of it like a business, which is antithetical to the patent system (as it was originally conceived a long time ago). Does the US still have an open-handed approach when it comes to software patents, or is it becoming just a stretch of imagination prevalent among patent maximalists who give bad advice to potential or existing clients? As one patent attorney put it the other day, "ITC ruled that two Jawbone patents asserted against Fitbit are Ineligible under Alice/ 101: http://assets.law360news.com/0767000/767622/1078594-575628.pdf"

So even the overzealous and biased ITC, not just the typical courts, is not antagonising software patents? This may be unprecedented.

Patent maximalists over at IAM said this morning that "Chinese companies see US pendulum swinging back, while validity becomes more of an issue at home". It's about PTAB, which is increasingly being used to invalidate software patents even without them being used litigiously. To quote IAM: "Chinese companies may be using PTAB as a handy tool for now, but one defensive risk analyst I spoke to in Shenzhen expressed the views that the prevalence of invalidity challenges in the US is more a temporary opportunity than a ‘new normal’."

Earlier this year we wrote about how a Chinese company had its products seized at a trade show, only to see the case against it dropped altogether. What is this? It sure made the US patent system blush a bit, as though its victims (not the so-called 'pirates' or 'thieves') are Chinese. This is not justice. It's just a bunch of goons storming a trade show because of patents and confiscating actual products.

All in all, software patents everywhere have no room in the docket, as courts (even in Europe) deem them invalid and it is time to recognise this new reality. There should be no software patents in Europe, for instance, regardless of the spin/wording, e.g. if they're "as such" or not (whatever that even means!). It puts the EPO's reputation at risk. In any patent system, rejection/acceptance rate does not in itself say anything, especially if it wrongly accepts and rejects applications (overworking the examiners means poorer identification of prior art, hence uncertainty, usually resulting in an erroneous grant). Based on sources of ours who are applicants at the EPO (several such people who already have patents in national patent offices), the EPO rejects legitimate patent applications whilst overpatenting e.g. granting patents on software. What message does that send out? What does this mean to the so-called 'results' that Battistelli brags about in him awkwardly scripted speech)? And if courts keep finding "EP" patents invalid, wouldn't that devalue "EP" patents and lead to degradation of confidence? A lot of inventors in Europe are rightly upset at the EPO right now. Their already-granted patents lose value (or perceived value).

The EPO is not a cash cow for Europe if the money comes from Europeans. Ask European patent applicants (not massive corporations from abroad) who spent as much as the value of a whole house how they feel after failing to get even one patent because of EPO misconduct whilst others (massive corporations) receive a fast lane and get "EP" patents in bulk. It's a sordid mess and a sham.

If Christoph Ernst becomes the EPO's President some time this spring (or maybe later this month), then he can use his background in economics/law to amend policy so as to better comply with the EPC (i.e. no software patents). Moreover, for Ernst (or another potential president) the first step to take should be to restore/recognise the status of SUEPO and bring back dismissed representatives. They too expressed concerns about patent scope, even many years ago. SUEPO was right all along.

Recent Techrights' Posts

How We Do Techrights (and What's Changing Next Week)
Many former news sites no longer yield much non-meaningless news (not anymore); there's a gap to be filled
Links 12/07/2026: Palantir Unrest and Wireshark 4.6.7
Links for the day
Links 12/07/2026: New Instrument Time and PalmOS Experiences in 2026
Links for the day
Red Hat Staff Says IBM Policy Has Stigmatised Him as a Tool and a Slopper With Plagiarism Tools
IBM is killing Red Hat with slop
Freedom of Choice or Freedom Versus Choice (or When All Choices Are Incompatible With Freedom)
When some business asserts that it gives people different options, then it can rightly argue that it offers some choices, but that is not the same as freedom
Techrights IRC Turns 5 Without a “Code of Conduct”, “Code of Conduct Committee”, and All Those Bureaucratic Nightmares
18+ years if one counts our time in Freenode as well
Why U No Use AI???
Many hype waves come and go
There Are Still Slopfarms in Google News
Google is trying to participate in if not lead this pyramid scheme
The Cyber Show Explains How Slop and Promotion of Slop is About Taking Control Away From Computer Users
"On making a trustworthy machine"
Keeping Available the Site at All Times
Informal arrangements and crowdfunding keep our work available despite resistance (including from people who break the law)
What If "Era of AI" and "AI Revolution" (Fake News) Never Happened?
So how much longer before the bust (or bubble-burst)?
GNU/Linux Approaches 5% in Australia
5% by year's end?
Europe/EU is Moving Towards Independence, Fast to Adopt Free Software
More and more states (governments, public sector) in Germany are dumping Microsoft
GNU/Linux Grows at the Expense of Windows
People who want to get work done already left Windows
Tux Machines Growing as a Volunteers-Run Site
Historically the site did not have many original stories, but this changed as the audience grew and the site gained more recognition
Links 12/07/2026: European Commission Versus ‘Addictive Design’, "Google Loses Final Appeal Over $4.7 Billion EU Android Antitrust Fine"
Links for the day
GNU/Linux Market Share Increases Some More Today, statCounter Measures It at 7.3%
Will more such thresholds and records be broken?
Gemini Links 12/07/2026: Studying Languages and 2026 Old Computer Challenge (OCC)
Links for the day
EPO "Cocaine Communication Manager" - Part XIII - At the EPO, Cocaine Addicts and Their Friends Are "Protected Class"
What does that tell us about the EPO?
Increasing Output by Focusing on Originals
It's probably more important to carry on with these than it is to keep abreast of non-crucial news
Amid Strikes and Industrial Actions, Young Professionals at the European Patent Office (EPO) Kept on 'Short Leash', According to the Local Staff Committee The Hague
Issues affecting Young Professionals
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, July 11, 2026
IRC logs for Saturday, July 11, 2026
Blogs May be Making a Comeback (They're Not Fediverse, They Are Joined by RSS Feeds)
Don't fake expansion where none existed
ChromeOS and GNU/Linux in the United Kingdom Reach 11%
the UK shows signs of digital maturity
Corporate Media: Blame the People Who Enter the Abandoned IBM Buildings, Not IBM for Abandoning Workers in Pursuit of IT Sweatshops
When the media spreads falsehoods stocks can go up (a lot higher), but at whose expense and how long for?
Canonical is Selling Microsoft, It Pays The Register MS to Sell Microsoft
It's all about money to them. And they call this journalism.
When Red Hat's HR Becomes the Same as IBM's HR (Bluewashing)
Red Hat keeps sacking very experienced engineers and adding temporary interns
GNU/Linux Growing in East Asia
Assuming this is more or less accurate, we could use a plausible explanation
SUEPO Munich Report on the Recent EPO Demonstration and Rolling Strikes That Continue to Grow
"increasing registrations for the 'rolling strikes' running until autumn"
Over a Week After Microsoft Discontinued Some XBox Models It Apparently Exits Some Markets Altogether
We seem to be witnessing the end of XBox
Gemini Links 11/07/2026: Old Computer challenge, Poems, Antenna, and More
Links for the day
Links 11/07/2026: "Trademark wars of Influencer Culture", Xinuos Uses Copyrights Versus UNIX
Links for the day
North America: GNU/Linux Measured at 10%
To better understand what contributes to the gains
Following Corrections and Adjustments statCounter Sees GNU/Linux at 7.1%, an All-Time High
There is a lot of layoffs at Microsoft this month
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, July 10, 2026
IRC logs for Friday, July 10, 2026
Links 11/07/2026: Wednesday-Saturday News Catch-up
Links for the day
Prioritising High-Importance News
In order to fully catch up with news we'll not publish many new articles until next week